Death knell for witness evidence

Last month the Daily Mail ran the following headline: “Witnesses are not needed in civil disputes, says top judge because cases are often decided by who performs best in court”. The article continued “Ordinary people should no longer be allowed to give evidence in court in civil disputes … Civil trials should be handled only by lawyers and there should be no place for witnesses, Supreme Court president Lord Neuberger said”.

Taken out of context, these are rather alarming statements but when looked at in the context of the rest of Lord Neuberger’s 2017 Neill Lecture Twenty years a judge: reflections and refractions, as well as developments in our understanding of memory, the pressure to reduce the costs of litigation and plans for civil litigation such as the Online Court and fixed recoverable cost regimes, the conclusion seems almost inevitable: the central role of witness evidence in the resolution of civil disputes is on its way out.

We look at the various factors leading to this conclusion and consider what practical effect the direction of travel has upon those litigating at the moment.

Witness evidence isn’t reliable

Lord Neuberger explained his heretical conclusion that most of the best points that emerge from questioning can be made much more shortly in argument. He said:

“Most witnesses who are not telling the truth are not actually lying, but have misremembered or have persuaded themselves of the truth of what they are saying … I am very sceptical about judges relying on their impression of a witness, or even on how the witness deals with questions. Honest people, especially in the unfamiliar and artificial setting of a trial, will often be uncomfortable, evasive, inaccurate, combative, or, maybe even worse, compliant …”.

Leggatt J, with the benefit of a neurologist wife, explained the reason for this in his judgment in Gestmin SGPS SA v Credit Suisse (UK) Ltd in 2013. His exposition of the problem has found favour with many judges, particularly those in the Commercial Court. The problem in a nutshell is that the way in which court litigation works causes the witness’s memory of events to be based increasingly on documents they have read, including statements of case, which they did not see at the time or which came into existence after the events which they are being asked to recall. Those cross-examining the witness presuppose that there is a clear distinction between recollection and reconstruction, when in fact all remembering of distant events involves reconstructive processes that are largely unconscious. The strength, vividness and apparent authenticity of memories is not a reliable measure of their truth.

Disapproval of witness training

Recent disapproval of witness coaching in Harlequin v Wilkins Kennedy and Djibouti v Boreh does not help the cause of witness evidence. Familiarisation training, as it is usually advertised, is not improper as long as it does not amount to coaching the witness on their evidence. The problem, however, is that it may do the witness no favours particularly if, as was the case with the Republic of Djibouti’s witnesses, they then refuse to accept (with the exceptions of minor corrections) that anything said in their witness statement is wrong.

Scepticism about witness statements

Back in 1996 before the introduction of the Civil Procedure Rules, Lord Woolf noted that “witness statements have ceased to be the authentic account of the lay witness; instead they have become an elaborate, costly branch of legal drafting”. Fast forward to 2009 and Jackson LJ, in his preliminary report reviewing civil litigation costs, noted that nothing really had changed, a witness statement often being “a carefully crafted court document more akin to submissions than the story of a lay person”. He did however acknowledge the attraction of the exchange of statements for litigants who wish to avoid “trial by ambush”.

To address these concerns, the Jackson reforms in 2013 introduced a new CPR 32.2(3) which gave the court express power to limit issues covered and the length of witness statements. The courts have failed to respond with sufficient vigour to redress the problems complained of and sufficiently to limit the costs incurred. Witness statements (and disclosure) still remain what HHJ Simon Brown QC in the Birmingham Mercantile Court described as Manhattans – the spikes within a costs budget.

As the Jackson reforms were coming into effect, the Bar Council called for the abolition of witness statements in the Rolls Building courts if not all civil courts. It advocated replacing them with witness summaries, together with a discretion to exclude oral evidence or direct witness statements where necessary. In its report on reforming civil litigation it concluded that “at the end of a process which racks up costs to a high degree, parties are either wrongly influenced by what the other side’s statements say, or place no weight on them at all, knowing that they contain only spin and self-serving material”.

Reforms and the future

The expense of the current system, when combined with the other problems touched on above, means that the proposals for reform of civil litigation are all likely to limit if not remove witness evidence in its present guise from the court process. Limits are already applied in the Shorter Trials Scheme - they have to be if a complex matter is to be determined in a four day trial. Jackson LJ’s proposals for further fixed recoverable cost regimes due by the end of July will inevitably reduce the time spent drafting witness statements and the length of cross-examination (see this progress report). And Briggs LJ’s proposals for the Online Court will remove the central role of lawyers and oral hearings – he concludes in his civil courts structure review final report that “some attenuation of the expectation of a day in court seems to be a necessary reflection of the need to find more cost-effective ways of determining civil disputes”.

Conclusion

It may well be that the Daily Mail spotted the one idea in Lord Neuberger’s speech that is likely to come to fruition. The adversarial system under the CPR relying on detailed preparation of witness statements and cross-examination by lawyers is too expensive and time-consuming for available court resources and does not work well in a system with increasing numbers of litigants in person.

For those litigating at present, judges may be more receptive to applications to limit witness evidence under CPR 32.2(3) than you expect, and willing also to limit the parties’ costs budgets for that phase. They are also going to be quick to spot evidence of witness training so it is best avoided except where badly needed and provided by a reputable trainer.